Days after a privacy complaint was filed against Meta in the European Union over the recent controversial shift in the alleged legal basis for processing people’s data for ads, consumer groups across the region are making their own complaints about what the tracking giant is doing.
A coalition of nearly 20 consumer advocacy organizations is united in the view that Meta’s turning to rail users to consent to being tracked and profiled so it can continue to profit from microtargeting them is “unfair” and “unlawful” — a violation of the Consumer Protection Act. Consumers in the European Union “on several counts.”
Starting this month, users of Meta’s social networks, Facebook and Instagram, are being offered the “option” to agree to be tracked and profiled by the behavioral advertising company in order to continue/get free access to its products – otherwise they must pay it a monthly subscription (at least €9.99) for an ad-free version of the major social networks. So the updated Meta offer to EU users is to either hand over your privacy or hand over your hard-earned money.
“This is an unfair choice for users, which contravenes European consumer law in several aspects and must be stopped,” the European Consumer Organization (BEUC) said in a press release announcing that the complaint would be submitted to the network of consumer protection authorities. (Chinese Communist Party) today.
The complaint was joined by 18 BEUC member organizations – a diverse group of consumer advocacy groups based in the following EU member states: Bulgaria, Czech Republic, Denmark, France, Greece, Italy, Latvia, Lithuania, Netherlands, Norway. Poland, Slovakia, Slovenia, Spain and Sweden.
The groups object to the way Meta has implemented the “pay or consent model” — using what they see as “unfair, deceptive and aggressive practices” — and to the model itself, which they describe as “illegal.” They also raised data protection concerns which were already the focus of a complaint sent to the Austrian Data Protection Authority earlier this week by the non-profit organization Privacy Rights, noyb.
Commenting on this, Ursula Pachel, Deputy Director General of BEUC, said:
The choice the tech giant currently offers consumers is unfair and illegal. Millions of European Facebook and Instagram users deserve much better than this. Meta is violating EU consumer law by using unfair, deceptive and aggressive practices, including partially blocking consumers from using the Services to force them to make a quick decision, and providing misleading and incomplete information in the process. EU consumer protection authorities must now step in and force the tech giant to stop this practice.
Summarizing the issues identified in the Meta Model under the Consumer Protection Act, BEUC wrote:
- Meta partially blocks the use of Facebook and Instagram until users select one option or another, which constitutes an aggressive practice under European consumer law. By persisting and creating a sense of urgency, Meta pushes consumers to make a choice they may not want to make.
- Additionally, many consumers likely believe that by choosing the paid subscription as offered, they are getting a privacy-friendly option that involves less tracking and profiling. In fact, users will likely continue to have their personal data collected and used, but for purposes other than advertising.
- Meta provides misleading and incomplete information to consumers that does not allow them to make an informed choice. Meta is misleading them by offering a choice between a payment option and a “free” option, when the latter is not “free” because consumers pay Meta by providing their data, as previous court rulings have already declared.
- Given the market power of Meta’s Facebook and Instagram services in the EU and the very strong network effects of social media platforms (since all your friends are on Facebook and Instagram), consumers have no real choice because if they leave the services they will. They lose all their connections and interactions that have been built over the years. The very high subscription fees for “ad-free” services are also a deterrent for consumers, meaning consumers have no real choice.
“The company’s approach also raises concerns about the GDPR,” Paschel further noted. A BEUC spokesperson told us that it may, at a later stage, lodge a complaint about Meta’s data protection compliance with the relevant privacy authority, once it has completed its own assessment of the issues. Although he stressed that it is too early to say whether she will take this step or not.
Meta’s lead data protection authority in the EU, the Irish Data Protection Commission (DPC), several months ago evaluated the pay-or-consent offer. But she has not yet reached a conclusion. Meanwhile, Meta maintains that the model it devised for obtaining users’ consent to process its ads complies with the General Data Protection Regulation (GDPR). (Although the ad tech giant also said that when it was demanding performance of a contract and then legitimate interests for processing – both of which were later found to be non-compliant with the GDPR.)
The “pay or approve” model that Meta seeks to impose on EU users was not actually its invention; It was “pioneering” in Austria by the daily newspaper Der Standard – And then a paywall for the fake cookies quickly appeared on a wide range of news publishers in Germany and elsewhere in the EU.
Noib has been challenging this “pay or consent” approach to GDPR consent since 2021– Filed complaints with a number of data protection authorities, arguing that this model forces newspaper readers to “buy back their private data at exorbitant prices.”
Some data protection agencies appear to have been sympathetic to local newspapers’ use of cookie walls, seeing them as a way to support journalism production. But when it comes to Meta, that argument evaporates because it’s definitely not in the business of journalism. What’s more, the ad tech giant doesn’t even need to produce content to pump across its social networks; It gets all this stuffing for free from the same users, and now demands a fee if they want to use its services without being tracked and profiled for behavioral advertising. Which makes the “pay or approve” Meta model look like an even bigger scam.
Back in April, a decision taken by the Austrian Data Protection Authority on noyb’s complaint about a cookie paywall, states that users should have the ability to say yes or no to specific data operations – meaning blanket consent is not an option. But the outcome left it unclear how a cookie-blocking system could be operated in a GDPR-compliant manner, and a privacy rights group vowed to fight the decision in court. “The final decision on ‘payment or approval’ may be made by the European Court of Justice in the long term,” Noib predicted at the time.
Meta will likely rely on another multi-year round of GDPR-related complaints, legal challenges, and – finally – a referral to the European Court of Justice, followed by another long wait before a ruling, buying it several more years to work with the foundation reform. New legal. It continues to fuel its profits by doing whatever it pleases with European data.
But the challenge of consumer protection may complicate the usual rules of the game.
The Consumer Protection Commission has brought more coordinated action on consumer protection concerns to the EU in recent years, bringing many organizations and agencies together to address common concerns – with the help of one or more national consumer protection authorities being appointed to drive the effort. The process is also repeated at the European Commission to help facilitate dialogue, assess issues and put pressure on unfair practices.
The process of alerting and mobilizing a CPC can be faster than GDPR enforcement when it comes to enforcing changes to unfair behaviour. Although it still usually takes months, for the network to coordinate and come up with a position to pressure a trader they believe is violating the law.
The network also cannot impose fines itself. But if the issues are not resolved through the process of dialogue and commitments it aims to achieve, national consumer protection authorities can still pursue implementation at the local level. So, ultimately, if these consumer advocacy groups are not satisfied with what Meta’s lobbying for changes has achieved, they can still file complaints with national authorities urging them to take enforcement action (and these CPAs have the ability to impose fines of up to 4% of global annual turnover).
More recently, a raft of complaints to the CPC over TikTok – just last year – led to the video-sharing social network pledging to improve user reporting and disclosure requirements around ads/sponsored content; And enhance transparency around its digital currencies and virtual gifts. Although BEUC was not happy with the outcome, it said “significant concerns” remained unaddressed.
However, the CPC network may be able to wrest some “quick-buck” concessions from Meta – such as requiring it to tweak how it presents the available “Hobson’s Choice” to users. Meta will also likely face pressure to lower subscription fees to make opting out of tracking more accessible to users. (Just spitting here but imagine if they offered the option to track ads in exchange for paying €1 per year to not be tracked, which wouldn’t seem so obviously self-serving.)
Asked whether the issue for consumer protection authorities was the “pay or agree” option offered by Meta or how it was implemented, a BEUC spokesman said it was difficult to separate the questions because they were “closely interconnected.”
“Under consumer law, you need to make an informed and fair choice to purchase such a subscription. The first question also depends on compliance with data protection law. If this practice violates the GDPR, then the fact that it violates a law intended to protect fundamental rights should in our opinion It is unfair and illegal under consumer law as well,” he said, adding: “In any event, the selection was designed in an unfair, aggressive and misleading way.”
The European Commission itself has an additional supervisory role over Meta directly as the company is also subject to the new Digital Markets Act (DMA) and the EU Digital Services Act (DSA). In the latter case, its social networks, Facebook and Instagram, were designated as very large online platforms (VLOPs) earlier this year. Since late August, they have been expected to be compliant with this digital rulebook.
Both EU laws place restrictions on the use of personal data for advertising – and explicitly require users’ consent for such a purpose; It should be as easy to withhold this consent as it is to confirm it. So one issue that the Commission — the sole enforcer of per diem on VLOPs — may consider in the coming months is whether clicking “accept” versus taking out a credit card to pay an ongoing monthly fee is equally easy.
The regulation also contains provisions aimed at combating unfair/deceptive design, such as targeting choice interfaces that make choosing one option over another “more difficult or time-consuming.” Although the DSA’s provisions against dark patterns are only intended to apply where consumer protection and privacy laws do not apply, they also target unfair selections.